What Would Real Voting Reform Look Like?

Since the start of 2011, a wave of restrictive voting laws has swept the country. This attack on voting rights is unprecedented, unjustifiable, and discriminatory in its effects.

Over the last few weeks, the Department of Justice and the courts have stepped in, blocking some of the laws that most clearly violate protected rights. But none of these victories is final. To win the broader battle for the right of every eligible American to vote, we need more than a good defense against bad laws. We need positive bipartisan reform to bring our outdated electoral system into the twenty-first century.

Playing defense

Let’s start with the restrictive voting laws, and where they stand. Since the beginning of 2011, 14 states have passed, or are on the verge of passing, restrictive voting laws that have the potential to impact the 2012 election. The states—Florida, Georgia, Illinois, Iowa, Kansas, Mississippi, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Wisconsin, and West Virginia—represent 192 electoral votes, or 70 percent of the 270 needed to win the presidency. The new restrictions range from eliminating Sunday early voting (when Blacks and Latinos tend to vote in greater numbers) to imposing new burdens and potential penalties on groups that sign up voters. Most common of all are laws that require voters to produce specific kinds of government-issued photo ID before their votes can be counted.

If we are to stem the rising tide of restrictive state laws, we must also find affirmative solutions that work.

Such laws have been justified under the theory that they will prevent “voter fraud,” even though a person is more likely to be struck by lightning than to commit voter impersonation fraud—and even though 11 percent of voting-age Americans lack the kinds of ID these states will now require. That percentage is significantly higher among students, the elderly, African-American and Hispanic voters, and the poor. These will be the people most likely to lose their right to vote under these laws.

The Voting Rights Act, passed in 1965 to protect many of these same groups, has recently been invoked to challenge the new wave of voter suppression laws. In Texas, the Department of Justice objected to a photo ID law, citing concerns that it would disproportionately disenfranchise racial minorities. The DOJ also pointed out that the state had produced no real evidence of a voter fraud problem not already addressed by existing law. In Florida, where a new law imposed such onerous burdens on voter registration groups that the League of Women Voters and Rock the Vote were forced to suspend their activities altogether, the Department of Justice found that the state had failed to meet its burden to show that its voting changes are not discriminatory.

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The courts are also taking a more active role. Two Wisconsin state courts, in separate lawsuits, issued injunctions blocking any further implementation of that state’s photo ID law; the courts say that the law violates rights granted by the Wisconsin state constitution. This battle now continues in the state Court of Appeals. More recently, a state court in Missouri ruled that the ballot summary for a proposed constitutional amendment requiring a photo ID to vote was “insufficient and unfair.” Immediately on the heels of the court’s decision, the Missouri legislature began trying to rewrite the language and introduced new measures to try to get a constitutional amendment on the ballot in 2012.

Given the scope of the challenge, intervention by the Department of Justice and the courts is badly needed to protect our right to vote. But it is not sufficient. If we are to stem the rising tide of restrictive state laws, we must also find affirmative solutions that work.

Time to play offense

The use of so-called “voting reform” to disenfranchise voters hides the fact that there are real problems in our elections. None is bigger than our outdated, paper-based voter registration system, which is exceptionally expensive and riddled with errors. According to a study by Caltech-MIT, in 2008 2.2 million citizens could not vote because of registration problems. This should be a source of embarrassment on both sides of the aisle and an impetus for real election reform.

Among other problems, the existing system cannot keep up with voters as they move, pass away, or change names after getting married. State governments could use existing technologies to automatically and permanently register citizens to vote. In 2012, we have the ability to update voter records when necessary, provide for fail-safe correction of voter information at polling places, and allow expanded methods of registering, such as online registration. Such modernization would lower costs, add millions of eligible voters to the rolls, and also foreclose any possibility of fraud. Using existing government information that can be cross verified, our voting system can be brought into the modern electronic age, limiting the human errors we face in our paper-based system.

At a time when the states are busy enacting “solutions” in search of a problem, this is a real solution we cannot afford to pass up.

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Elisabeth Genn wrote this article for YES! Magazine. She is counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.